No one in Canada should be jailed or criminally prosecuted for thoughts, inferred attitudes or speech, in the absence of proven intention to have demonstrably caused actual harm to an identified person. Victimless crimes are antithetical to democracy. Supposed capability of inducing an emotional response (“hate”) in persons at large must never be the crux of a criminal prosecution. Section 319(2) (“Wilful promotion of hatred”) of the Criminal Code must be struck.

OCLA

The Ontario Civil Liberties Association vigorously advocates for authentic and unqualified freedom of expression of individuals, on all topics and in every form, in accordance with the right to free expression enshrined in the Canadian Charter of Rights and Freedoms.

Civil rights and legal context

The threats to civil liberties caused by the hate propaganda provisions (sections 318 to 320) of the Criminal Code of Canada affect all Canadians.

The said sections define offences resulting in prison sentences of up to five years for speech that need not be proven to have caused physical or psychological harm to any person. The sections define crimes of expression in which the Crown is not required to prove that there was a victim, or that any person suffered actual harm.

The said sections are applied at the discretion of the Government, since no proceeding can be instituted without the consent of the Attorney General. Thus, the use of such a proceeding as a political instrument is an inescapable feature of the law.

The political nature of charges made under the said sections is evident. Powerful individuals calling for or condoning wars of aggression that are actually carried out are never charged. The accused typically are politically isolated ordinary bloggers and publicists, who express highly unpopular views that attract the political opportunism of influential lobby groups, or are social media pundits who have a following that can be politically exploited because of its minority views that repel a majority constituency.

At the Government’s whim, the accused is confronted with the disproportionate legal resources of the Crown, and the investigative resources of the police – who will typically make a home-invasive seizure of all storage and communication equipment and agreements (mobile phones, computers, account statements, stored emails, books, etc.).

The arrested individual must apply for bail release. If released from custody, bail conditions can include a partial or total gag-order about the proceedings and about the impugned expression.

Prosecution of Kevin Johnston

According to multiple media reports, the charges against Kevin Johnston are solely regarding section 319(2) of the Criminal Code.

The social-media context is one where there are intense societal debates involving positions that can be characterized as “anti-Muslim” or “anti-Jewish” or “anti-freedom” and such. Mr. Johnston is on an “anti-Muslim” side of public expression. Section 319(2) has also been used against a blogger who was on an “anti-Jewish” or “anti-Israel” side (whose civil rights OCLA also defended). These topics are ones where there is a high potential for political use of the Criminal Code: either to placate influential lobbies or to exploit public sentiment about racism of opinion.

OCLA urges the Attorney General not to use section 319(2), which could result in jailing a citizen for unpopular expressed views — clearly political views about multiculturalism and security.

Instead, the government should trust a robust and wide-ranging societal debate to produce the best possible outcome, and trust the police and state prosecutors to pursue crimes having actual victims that have personally and demonstrably suffered actual harm beyond a threshold higher than the emotional-response realm.

The Ontario Civil Liberties Association believes that the proceedings against Mr. Johnston are systemically political in nature and should not be consuming public, police, and judicial resources. We believe that the proceedings are harmful to Canadian society, in addition to being unacceptably unjust towards a citizen.

We ask that the Attorney General retract his consent for the proceeding against Mr. Johnston, in the interest of preserving a just and democratic Canada.